Might China Withdraw From The Law Of The Sea Treaty? – Analysis

The early April passage of the French frigate Vendemiarie through the Taiwan Strait, amidst a significantly stepped up increase of such passages by US warships despite China’s objections, gives it one more reason to consider withdrawing from the UN Convention on the Law of the Sea (UNCLOS) altogether. However withdrawing would have significant costs as well as benefits. https://www.reuters.com/article/us-taiwan-france-warship-exclusive-idUSKCN1S027E

The idea of withdrawing from the Treaty (‘denouncing it’ in legal parlance) has come up before in regards to its nine-dash line historic claim to much of the south China sea  and an international arbitration panel’s ruling against it. China refused to recognize or abide by the result. This in turn damaged China’s international standing and stirred a domestic nationalist reaction that worried the leadership. At the time, some of China’s analysts and military officers quietly questioned why China ratified the Law of the Sea Treaty in the first place.

Part of the explanation is that China assumed– obviously incorrectly – that it could avoid the Law of the Sea dispute settlement mechanism by its optional exceptions to the compulsory procedures, and through direct negotiations to settle maritime jurisdictional disputes. The historic claim issue was primarily driven by and had ramifications for national pride and domestic political concerns rather than direct security concerns.

But now China is facing what its military perceives to be ‘clear and present’ dangers to its security in—and from –its vulnerable maritime underbelly—the South China Sea. A prime example is the increasingly provocative US Freedom of Navigation Operations (FONOPs) that the US uses to challenge China’s claims in the South China Sea. The China –US differences over FONOPs are more political and strategic than legal. Nevertheless, the US characterizes the dispute as ‘legal’ and insists that China is in the wrong. Yet, the U.S. maintains that it is simply exercising its ‘right’ to “fly, sail and operate wherever international law allows” including the right of its warships to sail in innocent passage through foreign territorial seas without prior permission. https://www.militarytimes.com/news/your-military/2018/11/09/us-pushes-back-at-chinas-warning-to-avoid-islands-it-claims-in-south-china-sea/

China and several other nations in Asia like Indonesia and Vietnam require permission for foreign warships to enter their territorial seas.  Even more egregious from the U.S. perspective, India, Malaysia, and US ally Thailand do not allow foreign military activities in their EEZs without permission.

China alleges that these FONOPs are a threat to its sovereignty, integrity and security. Its legal reasoning is not clear. Perhaps it views them as a threat of use of force which is a violation of the UN Charter—cross-referenced in UNCLOS. https://www.maritime-executive.com/article/two-u-s-destroyers-conduct-fonops-near-mischief-reef  For China, the threat to its security should be sufficient reason for the U.S. to cease and desist. Whatever the reason, there is obviously disagreement as to the interpretation of the relevant international law and who is violating it.

Now– amidst increasing tension between China and the U.S. across the board–the stepped up US warship passages and that of the Vendemiarie through the Taiwan Strait have come to the fore as both a political and security issue. Given recent advances in military weaponry and intelligence collection technology and techniques, China’s military probably thinks that the U.S.—and now France and soon maybe the U.K. and Japan –are –or will be taking advantage of what China sees as a loophole in the Law of the Sea to threaten its security and embarrass its leaders–both at home and abroad.

UNCLOS qualifies the right of transit passage through straits by stating that “if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an EEZ of similar convenience….”.  In China’s interpretation of the One China Policy, all the waters in the Strait are under ‘China’s’  jurisdiction and comprise its internal waters, territorial seas and its EEZ.  Thus Beijing apparently claims that according to this UNCLOS provision, the right of transit passage does not apply to the Taiwan Strait and that warships in particular should use the alternative route “of similar convenience” through the Luzon Strait between the island of Taiwan and the Philippines. 

The U.S. claims high seas freedom of navigation and over flight for all vessels and aircraft including military vessels and aircraft through the Strait regardless of whether it is Beijing’s EEZ or Taiwan’s EEZ. To it, such freedom of navigation and over flight includes related activities such as anchoring; launching and recovery of aircraft and water craft; other military devices; intelligence, surveillance and reconnaissance activities; exercises; maneuvers; and ‘military surveys’.  China presumably sees such activities in the Taiwan Strait as a threat to its security.

International politics also played a major role in China’s reaction to the Vendemiarie passage. https://thediplomat.com/2019/04/making-sense-of-chinas-reaction-to-the-french-navys-taiwan-strait-transit/ In September 2018, presumably at the instigation of the U.S., the U.K. conducted a FONOP near the Paracels. https://www.bbc.com/news/uk-45433153 France’s Taiwan Strait passage–perhaps also at the urging of the U.S. http://hilltopmonitor.com/2019/04/navy-warned-off-french-warship-in-taiwan-strait-china/ –demonstrated that extra regional powers are coming to the political assistance of the U.S. against China on this issue and it has decided to impose political costs as a warning to them and others.

Clearly, China considers the West’s interpretation of some key aspects of the UN Convention on the Law of the Sea as benefiting the West to its disadvantage. China and other developing countries view the Treaty as a package deal with many “bargains” between the maritime powers and the developing countries, including extensive navigational rights for maritime powers in exchange for the deep seabed mining provisions. Although some 167 parties including U.S. allies have ratified the Treaty, the U.S. reneged on the deal by not doing so. In China’s view, the U.S. is now picking and choosing interpretations of provisions that favor it to the detriment of China’s security. This combined with the increasing ‘coercive’ assertions by the U.S. and others of their interpretations might lead China to reevaluate remaining a party to the Treaty.

There would be serious political costs for withdrawing from UNCLOS.  It would result in a wave of international opprobrium and a propaganda coup for anti-China factions in the West – and Asia.  It would also create fear and even instability in the region and probably draw some Asian states closer to the U.S. as a “balancer” to China. 

However there would also be advantages to such an action. China would then be legally free to ‘pick and choose’ the Convention’s provisions and interpret them in its favor – just as the U.S. does now.   China’s withdrawal from the Convention would weaken it and the authority of its dispute settlement mechanism. China may welcome that as it—like rising powers before it –seeks to alter the interpretation of international law in its favor. At the least, it would give notice that China is not to be trifled with – that it will not ‘be taken advantage’ of by small Asian countries – some still politically influenced by their former colonial masters.

The U.S. and its Asian allies need to be careful lest they push China into actually being what many fear most – – another rogue country that successfully engages in coercion in its international relations.  Indeed, the proliferation and growing security threats of these ‘disagreements’ may eventually lead China to consider the costs of withdrawing from the Treaty less than the benefits.

This piece first appeared in The Diplomat.  https://thediplomat.com/2019/05/might-china-withdraw-from-the-un-law-of-the-sea-treaty/